Archive/File: people/i/irving.david/libel.suit/transcripts/day026.15
Last-Modified: 2000/07/25
MR IRVING: In my submission, if the Defendants intend to
cross-examine me in any great detail on either my opinions
or state of mind or correspondence or speeches or
activities, it is perfectly entitled to go to any
associations I have had with violent extremists who are
. P-132
not many, if I can put it like that.
MR JUSTICE GRAY: Why not non-violent extremists?
MR IRVING: My Lord, non-violent extremism is not defamatory,
if I can put it that way round. If I were to associate
with somebody who held extremist views, this would not be
in the least bit reprehensible. I could associate, for
example, with Lawton LJ or with Cumming-Bruce LJ who both
held extreme political views in the 1930s, but nobody hold
it the least bit against me if I were to associate them
now because of course I believe they sit next to each
other in the Court of Appeal. So holding extreme views
has never been held to be reprehensible. I think this has
been established in law, that it is not defamatory to call
somebody a communist. It is not defamatory,
unfortunately, to call somebody a Nazi or a fascist except
in certain circumstances. The context can sometimes make
it defamatory, but per se it is not actually defamatory as
such to accuse somebody of having extremist views.
MR JUSTICE GRAY: I am not sure about that. I think it may be
defamatory of somebody to say that he or she consorts or
associates with what you might call extreme extremists,
i.e., really the lunatic fringe of extremist because.
MR IRVING: Without any question, if the extremism is expressed
in violence.
MR JUSTICE GRAY: Let me just finish, because, and this is what
we call the sting of the libel, you are being, to put it
. P-133
mildly, careless in your choice of friends. That is the
way in which I think it becomes defamatory to make that
kind of allegation.
MR IRVING: Careless in their choice of friends, probably all
of us is careless in their choice of friends, my Lord, and
I would not consider that to be a very severe libel at all.
MR JUSTICE GRAY: It may not be the most severe libel, but the
question we are on at the moment is whether it is
defamatory at all.
MR IRVING: The real defamation here, and if we are looking for
a scale of defamation, the sting of the libel is that
I associate with people who are violently extremist, who
express their extremism by violent means and whose
extremism goes towards the overthrow of the democratic
rule of law or the overthrow of governments. That is
allegation that is made in the allegation that I consort
with Hamas or Hesbollah or terrorists leaders, that I am
willing to go on the same platform with them and speak
next to somebody like Louis Ferikan. That is the sting of
the libel, and to use that as a door to open my private
files to the exposure of the public, to suggest, well, he
has also got all sorts of other sleezy and unsavoury
friends or associates, whether it is true or false, is
I think highly prejudicial.
MR JUSTICE GRAY: I think you are making two different points,
. P-134
if I may say so. The first question is whether it is
defamatory at all to say that you consort with extremists,
leave aside what sort of extremists they are, and, as
I understand it, the second argument you make is that what
actually Professor Lipstadt wrote is that you consort with
a particular kind of extremist, namely violent extremists,
and that the Defendant's particulars of justification do
not really include those sorts of extremists; they include
other extremist but not the violently sort like
Hesbollah. Is that a fair summary of the way you put it?
MR IRVING: Your Lordship has summarized eminently well. It
was precisely the point I was going to make, and I was
only going to draw your Lordship's attention to the
authorities given by Gatley.
MR JUSTICE GRAY: Do you mind before we go to that, just
remind, because I did not at lunch time take with me the
Defendants' Summary of Case, to see how exactly they
summarize their ----
MR IRVING: I am sure Mr Rampton will.
MR JUSTICE GRAY: I would rather -- not "rather", that would
not be right to say at all, but I think it is helpful to
look at this stage at the written document.
MR IRVING: What I am asking your Lordship to do is to issue a
ruling to the Defendants on how far their
cross-examination can go, and what kind of associates or
associations or what kind of consorting they are entitled
. P-135
to cross-examine on, to have it go into the issues as pleaded.
MR JUSTICE GRAY: Yes. The summary: "The Plaintiff", you,
"are associated with right-wing extremists and right- wing
extremist groups in Germany, Britain and North America.
You have regularly spoken at events organised by
right-wing extremist groups, sharing a platform with other
right-wing extremists. You are a right-wing ideologue
whose participation in public affairs have been part of
and has assisted in the cause of Holocaust denial." The
last sentence is not relevant. But you are saying that is
not a defamatory meaning at all?
MR IRVING: I am inclined to use the words "so what?" Even if
true, so what? Even if it was true that I associate with
right-wing organized bodies or whatever it is, are they
kind of bodies that advocate the use of extreme violence?
MR JUSTICE GRAY: We must take this in stages. Are you saying
that that assertion is not a defamatory assertion at all
to be making about you?
MR IRVING: No, I do think so, my Lord. I think your Lordship
would agree, although I may be arguing against myself, it
is not defamatory for somebody to be called an extremist
or to say somebody holds extreme views, that is not
really, in law, defamatory.
MR JUSTICE GRAY: So that is your first submission.
MR IRVING: Yes, and to say someone holds right-wing views is
. P-136
not defamatory, except in certain circumstances.
Obviously if he was in the Soviet Union, then he would
probably be defamatory.
MR JUSTICE GRAY: In some way you could put your case higher.
They are not saying you are an extremist, well, in this
part of the case. They are saying you associate with
these right-wing extremists. Do you follow the difference?
MR IRVING: I would confidently expect your Lordship to say we
do not have any guilt by association in this country.
MR RAMPTON: I think it only right to remind your Lordship of
the summary, because one cannot take this little summary
at the beginning ----
MR JUSTICE GRAY: There is another one at the end.
MR RAMPTON: There is one at the end in box 80 on page 27 which
is really perhaps the nub of it.
MR JUSTICE GRAY: Yes. Shall I remind you of that, Mr Irving?
MR RAMPTON: I am bound to say I think that is highly defamatory.
MR JUSTICE GRAY: "Claimant is a right-wing pro-Nazi ideologue,
as is demonstrated by the views you have expressed in
speeches and publications".
MR IRVING: That is something different.
MR JUSTICE GRAY: That is saying you are a right-wing
ideologue, and then the Defendants say they will refer to
the anti-Semitic racist and misogynistic tone and content
. P-137
of your speech in publications.
MR IRVING: That is again something different.
MR JUSTICE GRAY: "Including those referred to above". With
respect to Mr Rampton, I think that is a slightly
different point. That is directing the allegation at you
personally.
MR IRVING: I can meet that one head on. I have no problem
with that.
MR JUSTICE GRAY: I think maybe your concern is more about what
you would describe as "guilt by association".
MR IRVING: Guilt by association for which there is no place in
an English court of law, my Lord.
MR JUSTICE GRAY: That depends on the case. As to whether it
is defamatory, my present view is that it is defamatory,
at all events in the context of this case, to say that you
associate with right-wing extremists. Try to dissuade me
from that view if you want to, but I think in the context
of this case that is probably is defamatory.
MR IRVING: I have to say that to associate with people who
hold right-wing views is not defamatory. To associate
with people who hold extreme views, and I gave the example
Lawton LJ as one example, is also not defamatory. The
allegation, the implication, innuendo is that I associate
people like the Hamas or Halbollah's terrorist leaders or
with Jerry Adams, to put it into an English context,
somebody like that, who would advocate the use of violence
. P-138
or applaud the use of violence. Of course, for that there
is not the slightest evidence. I would ask your Lordship,
therefore, to direct that the cross-examination should go
only to any associates of mine whom they can adduce who
have advocated violence or advocated the overthrow of
governments by violent means or that kind of extremism.
MR JUSTICE GRAY: You are on a separate point at the moment.
Just to complete the first argument that you are
advancing, would you not accept that if the Defendants
were able to adduce evidence that you were sitting there
on a platform, where others sharing the platform with you
and maybe participants from the floor are expressing
themselves in the most rabidly and repulsively
anti-semitic way, to make that allegation against you
could be defamatory of you. It is a hypothetical case.
MR IRVING: If they could establish that, yes.
MR JUSTICE GRAY: Yes. It is all a question of degree in a way.
MR IRVING: It is a question of what is meant by "extremism"
I think. I think "extremism" in the eyes of the libel
courts has always been the extent of extremism towards
unlawful ends or unlawful means. That is what the innuendo is.
MR JUSTICE GRAY: You wanted to go to Gatley in this connection?
MR IRVING: I was going to draw your attention to note 88 of
. P-139
page 43 of Gatley, where it does make the distinction, the
last three or four lines of that note,, after referring to
Devlin's L own ruling, it says:
"See Boater v. Moray [1974]", and the brief
summary is: "Not all communists' methods and techniques
are reprehensible", in other words, calling somebody a
communist alone is not necessarily defamatory. But then
it points out that in Butalazi the advocacy of violent
change is the kind extremism which is held to be defamatory.
MR JUSTICE GRAY: Yes. In a way that rather suggests it is all
a question of degree.
MR IRVING: It is a question of degree, my Lord, and in view of
the fact that the Second Defendant specifically instanced
Hamas, Hesbollah -- and I know they are putting that in
Section 5, but I am certainly not -- that is what worries me.
MR JUSTICE GRAY: I think you are slightly moving on to your
next argument, which is that the sting of the libel
actually published by the Defendants is that you associate
with these sorts of violent extremists, and that the
evidence they are apparently wanting to call does not
really link you with violence, although it may link you
with extremism. That is your second point.
MR IRVING: It may satisfy the court of course to the contrary,
that I am linked with violent extremists. It may be that
. P-140
is what the intention is. That is why I would ask your
Lordship to rule that unless they can produce that
evidence or cross-examine on that kind of evidence, then
they should limit their cross-examination purely to that
kind of association, otherwise we do go into day after day
of looking at isolated relationships or happening to be in
the same room or whatever, which is very unsatisfactory I think.

This site is intended for educational purposes to teach about the Holocaust and
to combat hatred.
Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may
include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and
provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist
and hate speech in all of its forms and manifestations.